A woman who survived a horrific plane crash off the coast of Norfolk Island in 2009, and was successful in her claim against the airline operator with the court finding that her post-traumatic stress disorder (PTSD) is a bodily injury and is compensable, has had her damages reduced on appeal, with the Supreme Court of New South Wales Court of Appeal finding PTSD caused chemical changes in the brain but no physical damage to the brain.

Background

In November 2009, CareFlight (NSW) Limited sent nurse Ms Karen Casey and Dr David Helm from Sydney to help transport a seriously ill patient and her husband from Samoa to Melbourne. The plane was operated by Pel–Air Aviation Pty Ltd. On the way back to Melbourne, the plane was scheduled to land at Norfolk Island to refuel. The weather at Norfolk Island was stormy. Over a 45-minute period, four attempts to land the plane were aborted and the pilot decided to ditch the plane into the ocean, advising the passengers that it had almost run out of fuel. Both Ms Casey and Dr Helm prepared themselves for the impact by putting on life jackets, using their lap seat belts and adopting the brace position. Still, they were flung violently around in their seats during the crash and suffered severe injury.

Before it hit the water, the plane was travelling at such speed that the violence of the impact caused it to break up. All six people aboard the plane survived, but the plane soon sank. Ms Casey and Dr Helm managed to free the patient. A life raft had not been deployed and so the survivors all had to remain afloat in heavy seas, in the darkness, with no lights, no beacons or any form of communication. The survivors were all rescued after 90 minutes by a fishing boat which had set out from Norfolk Island.

Ms Casey was evacuated by CareFlight to Sydney. She suffered physically and psychologically devastating injuries, including damage to seven of her teeth, neural irritation, back injury at C2/C3, C3/C4 and C4/C5, injury to the right knee, PTSD, a co-morbid depressive disorder, generalised anxiety disorder, chronic pain and a complex regional pain syndrome. Dr Helm also suffered injury to his back, bruising, as well as psychological consequences of his experience.

Initial proceedings

Ms Casey, Dr Helm and CareFlight all commenced proceedings in the New South Wales Supreme Court against Pel–Air and claimed damages. Pel–Air accepted that the crash had been caused by the negligence of the pilot and co-pilot, for which it had vicarious liability. Pel–Air held a licence and provided the plane to CareFlight pursuant to an agreement to which the 1999 Montreal Convention for the Unification of Certain Rules for International Carriage applied.

Ms Casey argued that all of her injuries, including PTSD were compensable under the Civil Aviation (Carriers Liability) Act 1959 (Cth) (the Act). Pel–Air conceded that the major depressive disorder, pain disorder and anxiety disorder were all caused by the physical injuries and were compensable under the Act. However, Pel–Air did not concede that Ms Casey’s PTSD was compensable under the Act. It argued that the PTSD was a psychiatric disorder which had been caused by the trauma which Ms Casey had experienced during the crash, and was not a bodily injury falling within Art 17 of the Montreal Convention, and not compensable under the Act.

Her Honour Schmidt J found that the PTSD which Ms Casey suffers is caused by damage to her brain and to other bodily processes, which have the result that her brain is no longer capable of functioning normally. The PTSD is a manifestation of that damage, and that damage has caused or contributed to the PTSD. On that basis, Schmidt J found that the PTSD which Ms Casey suffers is a bodily injury compensable under the Montreal Convention and the Act, and is to be included in the damages awarded, which totalled $4,877,604.

On appeal

Pel–Air appealed the primary judge’s findings. It argued that the primary judge erred in finding that Ms Casey’s PTSD constituted a bodily injury, that there was no evidence to support a finding that Ms Casey’s brain had changed, and that the changes resulting from PTSD did not amount to bodily injury. It argued that the effects of Ms Casey’s PTSD ought to be excluded from any award of damages.

The court noted that the expression “bodily injury” connotes damage to a person’s body, including damage to a person’s brain. The court found that the evidence did not establish that Ms Casey’s brain had been damaged but rather her PTSD caused chemical changes in the brain but no damage, and on that basis did not constitute a bodily injury.

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